Hitihamy Mudiyanselage Hirantha Bandara v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 3268/2019 [2025] HKCFI 4005 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No.3268 of 2019
Application for Leave to Apply for Judicial Review Following;
Order by Deputy High Court Judge K. W. Lung: Leave to apply for Judicial Review be refused. Observation for the Applicant: THE APPLICATION 1.The applicant applies for leave to apply for judicial review of the Corrigendum Decision dated 14 September 2018 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below. 2.The applicant asked for a hearing. He appeared before the Court on 4 August 2025. The applicant 3.The applicant is a national of Sri Lanka. Between the period of 2005 and 2012, he was an illegal immigrant and was arrested and repatriated 3 times. On 28 December 2015, he lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by S.B. Dissanayake (“SBD”), the minister of Social Empowerment and Welfare, and his people because he refused to support SDB and he has information of SDB’s corrupt business. SDB’s supporters are afraid that he may disclose such information in detriment of SDB. 4.Details of his claim are set out in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003268_2019_files/the_Board's_Decision.pdf. The Director’s Decision 5.The Director considered the applicant’s claim in relation to the following risks:
6.By way of the Director’s Decision, the Director dismissed the applicant’s claim because it was unsubstantiated. Besides, state protection is available and internal relocation is viable, which will mitigate or neutralize the applicable risks. The Board’s Decision 7.The applicant appealed the Director’s Decision to the Board. On 22 January 2018, the Board conducted an oral hearing for his appeal. The applicant and the Director were respectively legally represented. 8.Having considered the evidence, the Board found that the applicant failed to make out a case for non-refoulement protection for the reasons below.
9.The Board had made a corrigendum of the Board’s Decision because the Board, in its original Board’s Decision, had referred to Bangladesh in its consideration of the COI. See paragraphs 28 and 29 of the Board’s Original Decision. In the corrigendum Board’s Decision, the Board had referred to Sri Lanka’s information instead of that of Bangladesh. Application for leave to apply for judicial review of the Board’s Decision 10.The applicant has filed Form 86 dated 4 November 2019 for leave to apply for judicial review of the Board’s Decision. The applicant had given oral evidence and answered questions from his lawyer, the government’s lawyer and the adjudicator. 11.In his affirmation in support of his application, the applicant set out his grounds of appeal, saying that the Board had committed an error of referring to Bangladesh for COI reference. He further alleged that this mistake demonstrates that the Board did not consider his case independently, but only recycled the Director’s Decision. He submitted that it is unfair to him, and he should be given another chance to have his case considered by another Board differently constituted. DISCUSSION 12.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1). 13.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant attempted to submit articles, which, as according to him, would show that his enemies will kill him if he returns to Sri Lanka. He said that he had already provided the materials to his lawyer and the Board. This Court refused to accept the articles. 14.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
15.He complained that the Board had made an error on its reference to Bangladesh instead of Sri Lanka. This is a fact, which the Board had rectified by its corrigendum Board’s Decision. The question for the Court is whether such mistake is a serious mistake that should change the Board’s conclusion or it will cause unfairness or injustice to the applicant under the principle of advanced standards of fairness. 16.The main reason for the Board to dismiss the applicant’s appeal is that he will not have any real risk of harm if he returns to Sri Lanka. The Board has given its reasons under paragraph 24 of the Board’s Decision. Having considered the relevant facts of the case, the Board took the view that the election was over 10 years ago. The gangsters supporting SBD had agreed not to harm him if he did not disclose SBD’s secrets. He had not broken his promise not to disclose SBD’s secret to anyone. The applicant has not raise any reason that he had to disclose SBD’s secret. I therefore consider that it is reasonable for the Board to come its conclusion that he will not face any real risk of harm if he returns to Sri Lanka. 17.The mistake of reference of the country of origin information is not so important that will cause unfairness or injustice to the applicant. This is the information for the Board to consider state protection for the applicant if he returns to his country. If the Board is correct in its conclusion under paragraph 16, state protection will not be necessary to be taken into consideration. In fact, the applicant has not pointed out the consequence of the mistake himself. 18.I find that though the Board had committed a mistake as to the country for the country of origin information, this mistake will not advance the applicant’s case because this slip of reference does not adversely affect the integrity of the Board’s decisions on the applicant’s appeal against the Director’s Decision. The Board had made its findings on the facts of his claim. See paragraph 8. The COI only refers to state protection. In the Corrigendum Decision, the Board had re-considered state protection in Sri Lanka. This error has been rectified by the Board. In my view, this error does not affect the other findings of the Board under paragraph 8. 19.The Court of the First Instance in Wong Chau Ming v Secretary for Civil Service [2023] HKCFI 2468, 19 October 2023, Coleman J, held:
20.The applicant has raised no valid ground to challenge the Board’s findings. For the reasons above, this Court does not find any reason to interfere with the Board’s Decision. 21.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision. DISPOSITION 22.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application. Dated the 12th day of September 2025
Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence
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Cases cited in this judgment